throbber
FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
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`EXHIBIT B
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Lilig., 36 Misc.3d 1234(A) (2012)
`seeN'LV'.S'.2d’51',"201'2 N'.Y'.'
`'S'lip' 'Op."'§i"5§7(0)' '
`"
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`INDEX NO .
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`Unreported Disposition
`
`KeyCite Yellow Flag - Negative Treatment
`Decision Supplemented by Dummitt
`v. Chesterton. NY‘Sup"
`September 19, ZUIZ
`
`For defendant Crane Co: K & L Gates, by Tara L.
`Pehush, Esq, Jeffrey S. King, Esq. and Angela DiGiglio,
`Esq, 599 Lexington Ave, NY, NY 10022, (212)536-3900
`
`OPINION OF THE COURT
`
`36 Misc.3d 1234(A), 960 N.Y.S.2d 51 (Table), 2012
`
`Joan A. Madden, 3.
`
`WL 3642303 (N.Y.Sup.), 2012 NY. Slip Op. 51597(U)
`
`This opinion is uncorrected and will not be
`
`published in the printed Official Reports.
`
`*1 In the Matter of New
`
`York City Asbestos Litigation
`
`Ronald Dummitt, Plaintiff,
`v.
`
`AW. Chesterton et al., Defendants.
`
`1090196/ 10
`Supreme Court, New York County
`Decided on August 20, 2012
`
`CITE TITLE AS: Matter Of
`
`New York City Asbestos Litig.
`
`ABSTRACT
`
`Products Liability
`Failure to Warn of Danger
`Asbestos—Government Contractor Defense
`
`Contribution
`
`Apportionment of Liability among Joint Tortfeasors
`Asbestos Litigation
`
`New York City Asbestos Ling, Matter of; 2012 NY
`Slip Op 51597(U). Products Liability~Failure to Warn
`of Danger—-—Asbestos—Government Contractor Defense.
`
`Contribution—wApportionment of Liability among Joint
`
`TortfeasorssAsbestos Litigation. (Sup Ct, NY County,
`Aug. 20, 2012, Madden, J.)
`
`APPEARANCES OF COUNSEL
`
`For plaintiff: Belluck & Fox, LLP, by Jordan Fox, Esq.
`and Seth A. Dymond, Esq, 546 Fifth Ave, 4th floor, NY
`NY 10036, (212) 6814575
`
`Defendant Crane C0. (Crane) moves pursuant to CPLR
`4404(a) to set aside the judgment in favor of plaintiff and
`for judgment in its favor as a matter of law on the grounds
`that it is not liable for the mesothelioma plaintiff Ronald
`
`Dummitt alleges he developed as a result of exposure to
`asbestos while serving in the Navy. The jury found that
`
`Crane acted recklessly in failing to warn of the dangers
`of asbestos, and awarded damages of $32 million; $l6
`
`million for past and $16 million for future pain and
`suffering. I Specifically, Crane argues it is not liable as
`it did not manufacture, supply or place into the stream
`
`of commerce any of the asbestos containing products
`to which Mr. Dummitt was exposed; Mr. Dummitt was
`
`exposed to asbestos containing products manufactured by
`other companies; Crane is shielded from liability based
`on the government contractor defense; the Navy was a
`
`knowledgeable purchaser; the Navy‘s failure to warn was
`a supervening cause; and there was insufficient evidence of
`
`recklessness and insufficient evidence that any breach of a
`duty by Crane was a proximate cause of Mr. Dummitt's
`
`mesothelioma. In the event judgment is not entered in
`its favor, Crane moves to set aside the verdict and for
`
`a new trial on those grounds, and on the grounds that
`consolidation of Mr. Dummitt's case with several other
`
`the court erred in excluding the
`cases was prejudicial;
`Navy from the verdict sheet and in its instructions with
`
`respect
`
`to the burden of proof as to CPLR Article
`
`16 apportionment; and the jury‘s failure to apportion
`damages to any companies *2 other than Crane and
`
`Elliot was against the weight of the evidence. Finally,
`Crane moves to set aside the verdict of $16 million each
`
`for past and future pain and suffering on the grounds that
`it is excessive.
`
`to Crane's
`Plaintiff opposes the motion with respect
`argument that it is entitled to judgment as a matter of
`law arguing that Crane bases its motion on an incorrect
`
`that Crane‘s arguments address
`standard of review.
`whether there was evidence to support its contentions, not
`
`whether there was a rational basis for the jury‘s verdict,
`
`the correct standard of review. Plaintiff further argues
`that the evidence at trial was sufficient to support the
`
`
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Litig., 36 Misc.3d 1234(A) (2012}
`QEONYEEH Sim,“ 2012 NIYIHS'Eip’OpZmfi'i-i " H
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`jury's verdict, the verdict was not excessive, and the court
`
`did not err as to the law with respect to the government
`contractor defense, the burden of proof under Article 16
`and in excluding the Navy from the verdict sheet.
`
`CPLR 4404(a) provides that “the court may set aside
`a verdict or any judgment entered thereon and direct
`
`that judgment be entered in favor of a party entitled to
`judgment as a matter of law or it may order a new trial .
`.
`.
`
`therefore defective, and that Crane knew of the dangers
`and knew such products would be used with its valves.
`
`Thus, plaintiff argues, Crane is liable for failing to warn
`
`of the dangers of using asbestos containing products in
`conjunction with its valves.
`
`The evidence showed that during plaintiffs 17 years of
`service on Navy ships, he was exposed to asbestos not
`only from products used with Crane's valves, but also from
`
`where the verdict is contrary to the weight of the evidence
`
`products of other manufacturers. As to Crane, plaintiff
`
`[or] in the interests of justice.” The standard for setting
`aside the verdict and entering judgment for the moving
`party as a matter of law is whether “there is simply no valid
`line of reasoning and permissible inferences which could
`
`possibly lead rational men [and women] to the conclusion
`reached by the jury on the basis of the evidence presented
`at trial. The criteria to be applied in
`
`making this assessment are essentially those required of a
`Trial Judge asked to direct a verdict.” Cohen v. Hallmark
`
`Cards, Im‘, 45 NY2d 493, 499 0978). However, “in any
`case in which it can be said that the evidence is such that it
`
`would not be utterly irrational for a jury to reach the result
`
`it has determined upon, and thus, a valid question of fact
`does exist, the court may not conclude that the verdict is
`as a matter of law not supported by the evidence.” Id.
`
`The standard used in determining a motion to a set aside
`a verdict as against the weight of the evidence is “whether
`
`the evidence so preponderated in favor of [the moving
`party], that the verdict could not have been reached on
`
`established that he was exposed to asbestos during the
`maintenance and replacement of gaskets, packing and
`insulation used with Crane's valves. It is undisputed that
`plaintiff did not allege that the proof would establish that
`
`Crane manufactured or supplied either the original or
`replacement asbestos containing products to which he was
`
`exposed. Rather, plaintiff alleged and offered proof that as
`to some of the valves which Crane supplied to the Navy on
`the ships where plaintiff served, Crane supplied, although
`it did not manufacture, the original asbestos containing
`gaskets and packing. Plaintiff also *3 offered proof
`that Crane rebranded asbestos sheet gaskets as Cranite
`
`and supplied some of its valves to the Navy with such
`Cranite gaskets, and sold asbestos containing gaskets and
`replacement parts for its valves. While plaintiff conceded
`
`he could not prove that he was exposed to original or
`replacement asbestos containing products supplied or sold
`by Crane, he offered this evidence to establish that Crane
`
`knew that asbestos containing products would be used
`with its valves.
`
`any fair interpretation of the evidence.” Lolik v. Big V
`
`In addition to the foregoing, plaintiff offered evidence
`
`Inc. 86 NY2d 744, 746 (l995) (quoting
`Supermarkets,
`rMoffarr v, Mofl‘hrr, 86 AD2d 864 [2ndDept 1982], aff’d 62
`NY2d 875 {19841}. This does not involve a question of law,
`
`but rather “a discretionary balancing of many factors.”
`Coleen v. Hallmark Cards, Inc, supra at 499.
`
`I. DUTY TO WARN
`
`judgment
`for
`to Crane's motion
`respect
`With
`notwithstanding the verdict or in the alternative to set
`
`aside the verdict on the grounds that Crane had no duty to
`warn, for the reasons below. I conclude the motion should
`
`be denied. Plaintiffs theory of liability was that Crane, as
`
`a manufacturer of valves had a duty to warn of the use
`of defective produots with its valves. Specifically, plaintiff
`
`asserted asbestos containing products, including gaskets,
`packing and insulation at issue here, are dangerous, and
`
`that Navy drawings for Crane's valves used on the ships
`where he served specified internal gaskets and packing,
`and that Navy specifications required these components
`to be asbestos containing. Moreover, plaintiff produced
`evidence
`through Crane's
`corporate
`representative,
`Anthony Pantaleoni,
`that Crane was aware routine
`
`required replacement of
`maintenance of the valves
`packing and gaskets, and that such maintenance would
`release asbestos which would be hazardous. Plaintiff also
`introduced evidence that Crane knew asbestos insulation
`
`would be used with its valves. As to asbestos insulation,
`
`plaintiff‘s evidence showed that Crane published a manual
`in 1925 showing the use of asbestos containing covering
`and cement on Crane's valves to prevent the loss of heat,
`Crane contributed to 211946 Navy Machinery Manual
`
`specifying asbestos insulation for high heat applications,
`
`
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Litig., 36 Misc.3d1234(A)(2012)
`"9'60 N'Yi'Sléd 5122612le? Slip 'Opj SrisnéflU)
`m
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`and Crane advertised its valves as easier to insulate.
`
`Moreover, plaintiff
`
`showed that the Navy required valves to be tested by the
`manufacturer with lagging. and that Crane sold asbestos
`insulation, advertising that it could be used to cover
`
`irregular surfaces like valves. Finally, plaintiff introduced
`
`ship records for the ships on which he served, showing that
`
`insulation work was performed on valves on the ships.
`
`The Court of Appeals in Linear) r. Hobart Corp, 92
`
`NY2d 232 {1998), explains the law of products liability
`and negligence as follows: A manufacturer who places a
`defective product on the market that causes injury may be
`
`liable for the ensuing injuries. A product may be defective
`when it contains a manufacturing flaw,
`is defectiver
`
`designed or is not accompanied by adequate warnings
`for the use of the product. A manufacturer has a duty
`to warn against latent dangers resulting from foreseeable
`uses of its product of which it knew or should have known.
`
`A manufacturer also has a duty to warn of the danger
`of unintended uses of a product provided these uses are
`reasonably foreseeable.
`
`Id at 237 (internal citations omitted).
`
`As stated above, plaintiff‘s theory of liability was that
`Crane's valves were defective as Crane failed to warn
`
`of the dangers of exposure to asbestos from asbestos
`
`containing products used with its valves. Crane argues
`it is entitled to judgment as a matter of law, as under
`
`the New York law of products liability and negligence.
`a manufacturer has no duty to warn with respect
`to
`products it did not manufacture or place into the stream
`
`of commerce. Citing Amarulh' v. Delhi Construction Corp,
`77 NY2d 525 {1991), Crane argues a two~step analysis is
`used to determine whether a defendant has a duty: first,
`
`whether defendant is responsible for placing the product
`into the stream of commerce; and second. whether the use
`
`of the product was foreseeable. 2 *4 Crane also relies on
`the holding in Rasrelli r. Goodyear Tire & Rubber (.70..
`
`79 NY2d 289 (1992), which Crane argues stands for the
`
`proposition that based on a stream of commerce analysis,
`a defendant manufacturer has no duty to warn where
`its product is used with a defective product of another
`
`manufacturer which product defendant did not place into
`the stream of commerce. In Rasrelli, the Court of Appeals
`considered plaintiffs theories of liability grounded in strict
`
`products liability and negligence. 3 At issue was whether
`Goodyear was liable for injuries resulting from the use
`of a tire that exploded when mounted on a defective
`
`multi-piece rim manufactured by another company. The
`Goodyear tire could be used with 24 different models
`
`of multi—piece rims out of approximately 200 types of
`multipiece rims sold in the United States. Id at 293, fn
`1. Plaintiff argued that the tire was made for installation
`
`on a multi—piece rim, and, as Goodyear was aware of
`the dangers of using its tires with such rims, it had a
`duty to warn of the dangers of such use. Id at 297.
`
`the Court of
`In finding that Goodyear was not liable.
`Appeals determined that “[u[nder the circumstances of
`this case, we decline to hold that one manufacturer has a
`
`duty to warn about another manufacturer's product when
`the first manufacturer produces a sound product which is
`compatible for use with a defective product of the other
`manufacturer.” Id at 297-298. The Court reasoned that
`
`“Goodyear had no control over the production of the
`subject multipiece rim, had no role in placing that rim in
`the stream of commerce, and derived no benefit from its
`sale.” It] at 298.
`
`Here, as to the existence of a duty, plaintiff relies on
`the legal analysis in Sawyer v. AC cf: 5, Inc. 32 Misc 3d
`1237(A) (Sup Ct, NY Co, June 24, 20] l, Heitler, J.) and
`
`DeFazio v. Creme C0. 2011 WL 1826856 {Sup Ct, NY Co.
`May 2, 2011, Heitler, I). These decisions discuss Crane‘s
`
`argument that it has no duty to warn under Rosie!!!
`
`in light of the First Department‘s subsequent decision
`
`Inc", 288 AD2d 148 (lst Dept
`in Berkowit‘z v. AC & S,
`2001). In Berkm-riiz the First Department held that a
`manufacturer may be liable for failure to warn of the
`
`dangers of asbestos with respect to asbestos containing
`products it neither manufactured nor installed. but which
`
`were used in conjunction with its equipment. At issue
`was whether defendant Worthington, a manufacturer
`
`of pumps used on Navy ships, was liable with respect
`to asbestos containing insulation it did not supply or
`
`manufacture. but which was used with its pumps. 4 *5
`
`AddreSSing arguments of a conflict between the decisions
`
`in Benefit and Berkowitz. Justice Heitler in Sawyer. found
`that they are neither mutually exclusive nor in conflict=
`
`and in support of this conclusion, pointed to the following
`analysis in Curry 1:. American Standard. 201 US Dist
`
`LEXIS 142496, (SDNY Dec. 6, 2010, Gwin, J).
`
`
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC . NO . 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Litig., 36 Mlsc.3d 1234(A} (2012)
`
`’MZmé N,;Y'.S..fié.op.- 5.1
`
`..
`
`..
`
`.
`
`.,
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`The Court thus finds that a manufacturer's liability for
`third‘party component parts must be determined by the
`
`Under these circumstances, the duty is not based solely
`on foreseeability, or the possibility that a manufacturer‘s
`
`degree to which injury from the component parts is
`foreseeable to the manufacturer. Aceordingly, the issue of
`Crane's liability for third—party component products rests
`in the degree to which Crane could or did foresee that
`
`its own products would be used with asbestos- containing
`components. Where Crane's products merely could have
`
`been used with asbestos—containing components, the New
`York Court of Appeals holding in Rasrelli cautions
`against
`liability. Yet where, as
`in Berkmw‘rz, Crane
`
`meant its products to be used with asbestos-containing
`components or knew that its products would be used with
`
`such components, the company remains potentially liable
`for injuries resulting from those third-party manufactured
`and installed components.
`
`Id at 3. Justice Heitler distinguished the Ber‘kowirz and
`
`Rastelli holdings. noting that while there was no duty
`to warn in Rastelli “because the combination of a
`
`manufacturer's own sound product with another defective
`product somewhere in the stream of commerce was too
`
`attenuated to impose such a duty," in Berkowfrz, “if the
`same manufacturer knew or should have known that its
`
`product would be or ought to be combined with inherently
`defective material for its intended use, that gives rise to
`a duty to warn of known dangers attached to such use.”
`
`Sawyer v. AC& S, Inc, supra.
`
`I find the reasoning in Curry and Sang-w persuasive and
`conclude that sufficient evidence was adduced at trial that
`
`Crane meant for its valves to be used, or knew or should
`
`have known that its valves would be used in conjunction
`with asbestos containing gaskets, packing and insulation
`
`to warrant a determination that Crane was potentially
`liable under a failure to warn theory in strict products
`
`liability and negligence. As indicated above, plaintiff
`offered the following proof: Crane supplied asbestos
`containing gaskets, packing and insulation with certain
`
`valves it supplied to the Navy on the ships where plaintiff
`served; Crane supplied some of its valves to the Navy with
`
`Cranite gaskets; Crane sold asbestos containing gaskets
`and replacement parts; Crane knew that Navy drawings
`
`for Crane's valves specified asbestos containing internal
`gaskets and packing; and Crane knew asbestos insulation
`would be used with its valves. Moreover, the evidence
`
`showed that asbestos containing gaskets, packing and
`insulation were routinely used with valves.
`
`sound product may be used with a defective product so
`as to militate against a finding of a duty to warn. Rather,
`these circumstances show a connection between Crane's
`
`product and the use of the defective products, and Crane's
`knowledge of this connection, such that, under Berkewiiz,
`
`Crane could be potentially liable based on a duty to warn
`
`theory as a manufacturer who meant for its product to be
`used with a defective product of another manufacturer, or
`knew or should have known of such use. *6
`
`In reaching this conclusion, I reject Crane's argument
`that under present New York law the existence of a
`
`duty requires a finding that defendant was responsible
`for placing the alleged injury causing product into the
`stream of commerce.5 In addition to Rasrclli, Crane
`cites two Court of Appeals decisions, Amatulli v. Delhi
`
`Construction Corp, supra and Codi'ing v. Paglia, 32 NY2d
`330 (1973). While those decisions stand for the general
`proposition that a manufacturer who places a defective
`
`product into the stream of commerce which causes injury
`may be liable for such injury, they do not address the
`
`issue here, whether a defendant may be liable for injury
`resulting from a defective product it did not place into
`the stream of commerce, but which it knew or should
`have known would, or which was meant to be used in
`
`conjunction with its product. The additional cases Crane
`cites are distinguishable on their facts. See Kazlo v. Risa),
`120 Misc 2d 586 (Sup Ct, Orange Co 1983) (manufacturer
`
`of a pool not liable where it Was not aware that an allegedly
`defective ladder would be used); Passcreni r. Aurora Pump
`Co, 201 AD2d 475 (2nd Dept 1994) (appellant not liable
`
`where there was no evidence in the record that it had any
`connection with the pump in question); Porter v. LSB
`Industries, Inc, 192 AD2d 205 (4th Dept 1993) (trademark
`
`registrant not liable in products liability or negligence
`for a defective product); Carry v. Davis, 241 AD2d 924
`
`(4th Dept 1997 ) (entity involved in Section 8 housing
`subsidy program not liable in strict products liability with
`
`respect to lead paint in an apartment rented through the
`program); D‘Onofrio v. Boclilcri, 22l AD2d 929 (4th Dept
`1995) (trademark licensee not liable for injuries caused
`by a defective product); and Smith v. Johnson Products
`
`Co, 95 AD2d 675 (1st Dept 1983) (entity which did
`not manufacture the product in issue not liable in strict
`products liability).
`
`
`
`
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Litig., 36 Miscfld 1234(A} (2012)
`960 NJY'LSLEd' “St, 20t2mNQY'fS'F-ip Op.'515"§7’(U)
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`Plaintiff points to the following cases as instances where
`
`for the plaintiff in Drabc:yk, and asserts that in the
`
`courts have found that a defendant may be liable for
`failing to warn about an injury producing component
`that was neither manufactured nor supplied by defendant:
`
`Penn v. Jams Baum & Boiler, 25 AD3d 402 (lst Dept.
`2006) (manufacturer of an electrical alarm pull box and
`master discharge cylinders may be liable where those
`
`components initiated a discharge of gas from another
`manufacturer's carbon dioxide suppression system which
`killed plaintiff); Baum v Eco-Tee, Inc, 5 AD3d 842 (3rd
`
`Dept 2004) (defendant may be liable for injuries from
`the use of certain “air pipes” as “probes” regardless of
`
`whether defendant manufactured or supplied the pipes);
`Rogers v. Sears Roebuck & Co, 268 AD3d 245 (lst Dept
`
`2000) (manufacturer of a grill may be liable with respect
`to dangers from the build-up of propane gas where its grill
`couid not be used without a propane gas tank); Village
`
`Qf'Groton v. Tokher’m Corp, 202 AD2d 728 (3rd Dept), lv
`app de 84 NY2d 801 (1994) (manufacturer of a regulator
`has a duty to warn of the use of its regulator which
`
`caused leaks when used in an above ground fuel dispensing
`system without a pressure relief mechanism); and Baleno
`v. Jar-us! Research. Inc, 93 AD2d 982 (4th Dept 1983)
`
`(manufacturer of a portable Jacuzzi hydrotherapy unit
`may be liable with respect to its use with a defectively wired
`outlet). Furthermore, numerous trial court decisions on
`
`the asbestos docket throughout New York, which plaintiff
`
`cites, support his position and have held that a legal duty
`to warn exists where the injury producing component was
`
`neither manufactured nor supplied by defendant. 6 *7
`
`Since submission of this motion, a number of courts in
`
`various state and federal jurisdictions have considered this
`
`issue. In post-submission letter briefs, Crane points to the
`following decisions: Surch v. Foster Wheeler LLC, 831
`
`Inc",
`FSuppZd 797 (SDNY 2011); Conner v. Afftr Laval,
`842 FSuppZd 791 (EDPa 2012); O'Neil r. Crane Ca, 266
`
`P3d 987' (Sup Ct, Cal 2012); and In re Eighth Judicial
`District Asbestos Litigation (Drabc‘zyk), 92 AD3d i259
`
`(4th Dept), iv app den,l9 NY3d 803 (2012). Drttbczyk, a
`Fourth Department decision, and Surre, a Federal district
`
`court decision applying New York law, although not
`
`controlling, are relevant to the discussion at bar. 7
`
`In Drnbczyk, the court found that the trial court erred
`
`in charging the jury that defendant Fisher could be liable
`
`for decedent's exposure to asbestos contained in products
`
`used in conjunction with its valves. In a letter response,
`plaintiffs counsel states that his firm was trial counsel
`
`Drabczyk appeal, defendant Fisher only challenged its
`liability for external insulation applied to its valves, which
`
`insulation it did not supply. 8 Counsel asserts that at trial,
`Fisher conceded it was liable for replacement gaskets and
`packets used with its valves. As to external insulation,
`
`plaintiffs counsel argues that the facts in Drabczvk are
`distinguishable from the instant facts, as there was no
`
`evidence in Drabczyk that Fisher knew asbestos insulation
`would be used with its valves, while here, there is evidence
`
`showing that Crane had knowledge of the use of asbestos
`insulation with its valves.
`
`Plaintiffs argument is also applicable to the analysis in
`Surre, where the federal court applied New York law.
`Although the court in Surre held that Crane was not liable
`
`for the failure to warn of the dangers of external asbestos
`insulation applied post-sale to its boilers, it also found that
`there was no evidence that Crane knew or had reason to
`
`know during the period of *8 plaintiffs exposure that
`asbestos insulation would be applied to its boilers. The
`
`court reasoned that Crane was not liable as it did not place
`the insulation into the stream of commerce, the boiler did
`not need asbestos insulation to function, and there was no
`
`evidence that Crane was involved in the decision to use, or
`specified the use of asbestos insulation with its boilers. In
`
`reaching its decision, the Surre court explicitly recognized
`that “where circumstances strengthen the connection
`
`between the manufacturer's product and the third party‘s
`defective one, a duty to warn may arise .
`.
`. if the third
`
`party product is necessary for the manufacturer's product
`to function," or “the manufacturer knows that a defective
`
`product may be used with its product.” Surre, supra at
`801 (citing Rogers v. Sears Rosebuelc & C0, supra and
`Berkowitz v. AC & S Inc, supra).
`
`As to plaintiff‘s argument that Crane had a duty to warn
`since it was foreseeable that asbestos would be used with
`
`its boilers. the court in Sarre stated that “a duty to warn
`against the dangers of a third party‘s product does not
`arise from foreseeability alone” and relied on the decision
`
`in Tormriello v. Bally Case, Inc, 200 AD2d 475 (lst Dept
`1994). In Tortorieli'o,the First Department held that a
`manufacturer of a freezer was not liable as it played no role
`
`in selecting quarry tile for the freezer floor which plaintiff
`alleged contributed to causing her to fall, even though the
`tile was one of three types of flooring the manufacturer
`
`depicted in its literature for use in its freezer. Applying this
`reasoning in Tortoriello, the court in Surre held that Crane
`
`
`
`
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Litig., 36 Mise.3d1234(A)(2012l
`
`INDEX NO.
`602119/2015
`INDEX NO. 602119/2015
`RECEIVED NYSCEF:
`02/27/2017
`RECEIVED NYSCEF: 02/27/2017
`
`960NYS2d'51'; 2012' NY. 'S'Ii'p OpfStSQflU)‘ H
`
`was not liable as it played no role in choosing the asbestos
`insulation used with its boilers. The court
`
`went onto say that even if the foreseeability theory is valid,
`there was no evidence that Crane knew or should have
`
`knowu that asbestos insutation would be applied to the
`boilers at issue. Thus, contrary to Crane's argument, Surre
`is a nuanced decision and does not stand for the broad
`
`proposition that for a manufacturer to be liable it must
`place a product into the stream of commerce.
`
`Assuming the accuracy of the assertions by plaintiffs
`counsel as to Fisher's concessions at trial and the issues
`
`Fisher appealed, the decisions in Dmbczyk and Surre are
`not necessarily inconsistent with the conclusion reached
`
`herein. The facts are distinguishable, as unlike the facts in
`Surre and Dramatic, in the instant case there is evidence
`that Crane meant for its valves, or had or should have
`
`had knowledge of the use of asbestos containing gaskets,
`packing and insulation with its valves. Moreover, for
`
`the reasons stated above, Crane‘s duty is not based on
`foreseability alone, but rather on circumstances which
`strengthen the connection between Crane‘s valves and the
`
`defective gaskets, packing and insulation.
`
`judgment
`for
`motion
`Crane's
`Accordingly,
`notwithstanding the verdict on the ground that it did not
`
`have a legal duty to warn of the dangers of the use of its
`valves with asbestos containing products it did not place
`into the stream of commerce, is denied. Crane‘s motion to
`
`set aside the verdict as against the weight of the evidence
`on the same ground is also denied as
`
`there was sufficient evidence as detailed above for the
`
`jury‘s determination that Crane failed to comply with its
`duty to warn with respect to such use.
`
`11. EXPOSURE TO ASBESTOS FROM CRANE'S
`VALVES
`
`Crane argues that plaintiff failed to produce sufficient
`evidence to establish that exposure to asbestos from
`
`in causing
`factor
`Crane's vaives was a substantiai
`his mesothelioma such that it
`is entitled to judgment
`notwithstanding the verdict or in the alternative,
`the
`
`verdict should be set aside as against the weight of the
`evidence. In this regard, Crane argues its motion to strike
`
`the testimony of plaintiff’s medical expert, Dr. Jacqueline
`Moline, should have been granted, as *9 Dr. Moline
`
`failed to establish specific causation as required under the
`holding in Parker 1-“. Jl/Iobi'ir 0i] Corp, 7 NY3d 434 (2006).
`Pointing to Dr. Molinc's testimony that she could not
`
`segregate out and analyze plaintist individual exposure to
`specific products, Crane argues that her testimony failed
`to establish that plaintiff was exposed to sufficient levels
`of asbestos from products used with Crane‘s valves to
`
`warrant a finding that such exposure was a substantial
`contributing factor in causing his mesothelioma. Crane
`
`further argues that plaintiff‘s expert industrial hygienist,
`Richard Hatfield. similarly failed to show which exposures
`could have been substantial contributing factors, based on
`
`his response to a single hypothetical question that “there
`could be some exposures there that could be substantial.”
`
`An opinion on causation “should set forth a plaintiff‘s
`
`the toxin is capable of
`that
`exposure to a toxin,
`causing the particular illness (general causation) and that
`plaintiff was exposed to sufficient levels of the toxin to
`cause the illness (specific causation).” Parker v. Mobile
`
`Oil Corp, supra at 448. However, contrary to Crane's
`
`is not always necessary for a plaintiff
`argument, “it
`to quantify exposure levels precisely or use the dose-
`respOnse relationship, provided that whatever methods an
`
`expert uses to establish causation are generally accepted
`in the scientific community." Id. Moreover, “so long as
`plaintiffs' experts have provided a scientific expression' of
`
`plaintiffs exposure's levels, they will have laid an adequate
`foundation for their opinions on specific causation.”
`
`Norman v. City ofNew York, 88 AD3d 384,396 (181 Dept
`2011) (quoting Jackson v, Nutmeg Technologies, Inc. 43
`AD3d 599, 602 {3rd Dept 2007]}.
`
`Applying theses standards, I conclude plaintiff established
`legally sufficient evidence of specific causation. At the
`
`1 note Crane relies on isolated responses by
`outset,
`Dr. Moline and Mr. Hatfield and fails to address the
`
`entirety of their testimony within the evidentiary and
`contextual
`framework of the trial. Significantly, Dr.
`Mohne testified that
`there “is no threshold that has
`
`to asbestos
`been determined to be safe with respect
`exposure and mesothelioma”; even low doses of asbestos
`
`can cause mesothelioma; plaintiff's cumulative exposures
`to asbestos were substantial contributing factors which
`
`the occupational
`caused his mesotheliorna; each of
`exposures described contributed to causing the disease;
`and “there's no way of separating them {the individuai
`
`
`
`
`
`

`

`FILED: SUFFOLK COUNTY CLERK 02/27/2017 04:00 PM
`FILED: SUFFOLK COUNTY CLERK 022017 04:00 P
`NYSCEF DOC. NO. 332
`NYSCEF DOC. NO. 332
`Matter of New York City Asbestos Litig, 36 Misc.3d 1234(A) (2012}
`
`INDEX NO .
`602119/2015
`INDEX NO. 602119/2015
`
`RECEIVED NYSCEF: 02/27/2017
`RECEIVED NYSCEF :' 02/27/2017
`
`QéONYISQd 51", 2012 NY. Smlip'bp'. 5159')?th
`
`exposures] out.” Mr. Hatfield testified to the release
`of asbestos fibers into the air from the removal and
`
`replacement of gaskets, packing and insulation;
`
`the
`
`in gaskets and packing of,
`percentage of asbestos
`respectively, 60 to 85, and 15 percent; the existence of
`
`quadriliions of asbestos fibers in a standard gasket; and
`tests he performed showing that the removal of a gasket
`released from 2.3 fibers per cubic centimeter (CC) to
`
`4.4 asbestos fibers per CC, compared to the highest
`measured background level of .0005, and that the removal
`
`of packing released from .2 to .3 fibers per CC.
`
`Based on the foregoing, there is “scientific expression" of
`the basis for the opinions. Norman v. City ofNew York,
`
`supra at 396. Moreover, when the testimony of Dr. Moline
`and Mr. Hatfield is considered together with evidence that
`the ships on which plaintiff served contained hundreds
`
`of Crane's valves, there is legally sufficient evidence that
`plaintiff was exposed to asbestos while supervising routine
`maintenance work on Crane's valves so as to establish
`
`specific causation See In re New York Asbestos Litigation
`(filarsholr’). 28 AD3d 255 (1st Dept 2006); Lustem‘r’ng r.
`
`IV app den
`AC & S. Inc. 13 AD3d 69 (

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